ELR Citation: ELR 20703
No(s). 01-5184 (D.C. Cir. Jun 11, 2002)

The court affirms a district court denial of a chemical company's request for reimbursement from the United States for costs it incurred in cleaning up part of a polluted ravine. At least 80 drums of the company's waste were dumped in the ravine in 1976. When the U.S. Environmental Protection Agency (EPA) sought to remediate the site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the company agreed to pay for the remediation and incurred approximately $7.7 million in expenses. It then sought reimbursement from EPA of approximately $2.5 million in expenses that the company argued were geographically divisible from the remediation costs associated with its 80 drums. Specifically, the company argued that those portions of the ravine uphill from its drums could not have been contaminated by waste from the drums because liquid runs downhill. The court first holds that although the company may be correct that the uphill portions of the ravine were not contaminated by the 80 drums, it does not necessarily follow that the company has proven geographic divisibility. A polluter can escape joint and several liability under CERCLA for the entire harm only if it can meet its burden of proving the amount of the harm that it caused. The company cannot meet this burden. While it produced some circumstantial evidence to support its theory of geographic divisibility, it has not proved its theory by the preponderance of the evidence.

Counsel for Plaintiff
John L. Smeltzer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellant
James T. Banks
Hogan & Hartson
555 13th St. NW, Washington DC 20004
(202) 637-5600

Henderson, J. Before Sentelle and Randolph, JJ.